Kevin Marquez (KG&P & MVM Inc CEO) Named in Gay Discrimination Hearing

VIRGINIA:
IN THE CIRCUIT COURT FOR FAIRFAX COUNTY
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***** OSMAN, :
Plaintiff, : Case No.
vs. : CL24-352
CARMEN CAMPOS, SCOTT FORBES, NOAH HOWERTON, AMBER KODISH, ROSE SOMMOVIGO, CRYSTAL WHEELER, KG&P STRATEGIES, MVM INC, KACE COMPANY, THE PROVIDENCIA GROUP, EVOLVE24,:
Defendants. :
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HEARING BEFORE THE HONORABLE RANDY I. BELLOWS

Fairfax, Virginia
Friday, May 10, 2024
10:24 a.m.
Job No.: 537619
Pages: 1 - 56
Recorded By: Lee Utterback-Pair

Hearing, held at the location of:

FAIRFAX COUNTY CIRCUIT COURT
4110 Chain Bridge Road
Fairfax, Virginia 22030
Pursuant to agreement, before Lee UtterbackPair, Court Reporter.

ON BEHALF OF THE PLAINTIFF:

ELAINE L. JARVIS, ESQUIRE
JARVIS LAW, PLLC
128 N. Royal Avenue
Front Royal, Virginia 22630
540.546.0220

ON BEHALF OF THE DEFENDANTS:

ALEXANDER P. BERG, ESQUIRE
LITTLER MENDELSON, P.C. (MCLEAN)
1800 Tysons Boulevard
Suite 500
McLean, Virginia 22102
703.442.8425

ALSO PRESENT:
***** OSMAN - Plaintiff

PROCEEDINGS
(Whereupon, the court reporter was duly sworn.)
THE COURT: Okay.
MS. JARVIS: (Indiscernible) --
THE COURT: And --
MS. JARVIS: -- my client.
THE COURT: -- you?
MR. OSMAN: ***** Osman.
THE COURT: What?
MR. OSMAN: ***** Osman.
THE COURT: Okay, Mr. Osman. All right. All right. So let -- before I hear from you, Mr. -- please have a seat. Before I hear from you, Mr. Berg, let -- let me identify what I think are the legal issues that the Court needs to resolve in order to resolve the plea in bar and the demurrer.
MR. BERG: Yes, Your Honor.
THE COURT: You can have a seat.
MR. BERG: Thank you.
THE COURT: And it would make sense to the Court to address the arguments in this order, which probably is not the order in which you were prepared to address the argument, but --
MR. BERG: I'm happy to do my best, Your Honor.
THE COURT: Okay. The first issue is does the Plaintiff have to exhaust all administrative remedies under the VHRA before filing a private right of action? That's the first question. Second is the factual question, if the Plaintiff must exhaust administrative remedies, have they done so? The third issue is, if the Plaintiff has exhausted all administrative remedies under the VHRA, can the complaint be brought against the corporate defendants not named in the charge and right to sue letter? That's the -- what could be called a substantial identity issue. The next issue is can the complaint be brought against the individual defendants? In other words, is there individual liability under the VHRA? The
next issue is can the complaint raise charges of discrimination that were not in the charge or right to sue letter? And does the complaint -- and finally, does the complaint allege sufficient facts to -- this is the demurrer issue -- sufficient facts to support a claim of discrimination based on sexual orientation and/or national origin discrimination? So I think it makes sense, and this is how I propose to proceed; for the Court to resolve the legal issues and advise you of my decision on the legal issues, and then turn to the factual issues. So --
MR. BERG: Yes, sir.
THE COURT: -- with -- with that said, the -- Mr. Berg, why don't you first address, from the podium, does the Plaintiff have to exhaust all administrative remedies under the VHRA before filing a private right of action. I am fully familiar with the decisions of Judge Tran, Judge Alston, Judge Cullen, so -- Judge Smith. So I've --
MR. BERG: I -- I appreciate that, Your--
THE COURT: Please -- please -- I mean, I -- obviously -- yeah. You can tell from what I've said so far that I've gotten deep into the weeds of this case.
MR. BERG: You have.
THE COURT: Okay.
MR. BERG: All right. Well -- and thank you, Your Honor. I -- I appreciate that --
THE COURT: And I'm going to deal with these -- I'm going to deal with these just -- I'm sorry to interrupt you, but --
MR. BERG: Not at all.
THE COURT: -- we have the time we need because, as you can see, everything else is done on my 10:00 a.m. docket. And I'm going to not have you argue everything. I'm going to do one at a time, and then have Ms. Jarvis make her argument --
MR. BERG: Okay. So I'll just focus on --
THE COURT: -- on each -- on each issue.
MR. BERG: -- the first question for the moment before turning it over to Ms. Jarvis, and so on. That's fine. The -- the answer is -- the short answer, because I think given all the paper that has changed hands, brevity is important here. The answer is, yes, Mr. Osman must, as a matter of law under the Virginia Human Rights Act, exhaust his administrative remedies before proceeding in Court on -- and raising any claim under the Virginia Human Rights Act. And --
THE COURT: And -- and that's the position taken by Judge Cullen, Judge Alston, and Judge Tran.
MR. BERG: It is.
THE COURT: The only decision that I'm aware of at odds with that is Judge Smith's.
MR. BERG: The -- the Cooper Indus case, Your -- yes. And -- and that --
THE COURT: The Cooper Indus case.
MR. BERG: Right. And -- and I think that, with respect to Judge Smith, as Your Honor has alluded to by the predicate here, I think that the -- the weight of authority, the majority of -- the vast majority of the decisions on this have found there is an exhaustion requirement. I think the statute resolves any ambiguity on this itself. And I focus on Sections 2.2-3907(a) and 2.2-3908(a), as well as Section 4520-50(a)(2) of Title I of the Virginia Administrative Code and Subsection 45-20-25(b) under Title I of the Virginia Administrative Code, and my reasoning is -- is as follows. Title -- excuse me, Section 2.2-3908(a) only gives the right for a civil action by a private party to -- and this is quoting from Subsection (a) -- An aggrieved person who has been provided a notice of his right to file a civil action pursuant to Subsection 2.2-3907. Now, obviously, you cannot have and receive a right to sue without filing a charge in the first instance, and that is set forth in Subsection 2.2-3907(a).
THE COURT: Yeah. Essentially, I think part of your argument, at least, is it wouldn't really make sense to have a framework that involves a right to sue if the individual didn't have to exhaust administrative remedies first.
MR. BERG: Correct. Yes. The -- the Virginia -- I don't think -- I -- I think -- although we're not taking testimony from Judge Smith, I think even Judge Smith would agree that the VHRA, as a statutory scheme, is modeled closely off of Title VII. It's not identical in all respects, although there are substantial similarities there. And Title VII, as it's been canon for now 60 years, requires a charge filing a
crime and -- and -- and a receipt of a notice of right to sue. And the reason for that is set forth I think the Balas case from the 4th Circuit, that's cited in our papers, lays that out quite compellingly. It serves two purposes that are not just to be rushed through as a formality to proceeding in litigation. Those are namely, one, notice to the employer or the person who's alleged to have committed the discrimination or engaged in the unlawful employment practice and, two, an intent to encourage conciliation or informal resolution by the parties so that it -- it can be promptly investigated and, if need be, resolved to the extent there is any --
THE COURT: All right. Let -- let me hear from Ms. Jarvis on this. I'll let you know if
I need to hear further from you on this --
MR. BERG: Thank you, Your Honor.
THE COURT: -- on this first issue.
MS. JARVIS: Thank you, Your Honor. I think I can make this one easy. I absolutely think that all -- all remedies must be exhausted before one can proceed with a right to sue under either the VHRA or the EEOC.
THE COURT: Okay. So that resolves that. All right. So the -- you have to exhaust administrative remedies. As I said, we're going to just deal with legal issues right now before I turn to the factual issues. So the next issue, next legal issue, can the complaint be brought against corporate defendants not named in the charge and
right to sue letter? And so, why don't you address that, this -- this -- what --
MR. BERG: Sure.
THE COURT: -- you could call the substantial identity issue.
MR. BERG: I -- I guess that's now subsumed within your question too, Your Honor, about whether they've done so. Right. There's no dispute that there -- that Mr. Osman has received notice of right to sue, although I think it's
important, before I get to that question, just to note that the notice of right to sue itself is addressed to KG&P Strategies, Inc. period full stop, and that's the Complaint Exhibit 1B and Exhibit 3 to -- to Plaintiff's opposition. So that -- that frames the discussion that follows with respect to Your Honor's Question 3. And the answer here is in -- in theory, that can be done, but not on the facts as alleged
here that these defendants are not -- are not sufficiently alleged to have any substantial identity with KG&P Strategies, the only named respondent in the charge. And the extent of the allegations in this regard, really, are Paragraph 3 of the complaint, which is entirely conclusory, Additional corporate defendant -- and I'm quoting from Paragraph 3 of the complaint here. Quote, Additional corporate defendant, KG&P Strategies, Inc. is a Virginia corporation with a principal office of 19775 Belmont Executive Plaza, Suite 400, and so on. Then the next sentence, KG&P does business in Virginia as evolve24, KACE, MVM, Inc. and the Providencia Group. The basis for that is lacking on the four corners of the pleading, to the extent that Ms. Jarvis has provided attachments from the Virginia State Corporation Commission to her opposition brief. They, at most, established the unremarkable proposition that these entities shared an officer and perhaps an office address. There's been no effort to allege substantial identity among the types of operations they have and, indeed, evolve24, who is actually identified in the complaint as Mr. Osman's employer, is based in Missouri, in stark contrast to the KG&P, which is based in Virginia. We've also attached as exhibits to our reply other filings of which the Court can take judicial notice. I think there's no dispute as to their authenticity here that confirms that there is a -- a complete lack of -- of alias, if you will, among these named defendants in the lawsuit.
THE COURT: You -- you have skipped into -- not skipped, but you have moved into the facts. I -- I -- I want to -- I -- I -- I want to -- I want to reserve that issue and deal solely with the legal issue as to whether or not you agree that a complaint can be brought against the corporate defendants who are not named in the charge and the right to sue letter if substantial identity is established. And the reason I'm posing that question is the substantial identity case law deals with Title VII; it doesn't -- that -- that I'm aware of. Are -- is there -- is there VHRA case
law dealing with substantial identity?
MR. BERG: We have not found case law, nor do we cite any in our papers, under the VHRA.
THE COURT: So -- so it's under Title VII. So the -- the -- I -- I want to -- I want to
focus you on the pure legal issue.
MR. BERG: There is no blanket prohibition against a principle of substantial identity. I think it is, unfortunately, fact specific. So I -- I'm sorry that I don't have a
bright line yes or no answer, other than to say the substantial identity principle is one that is founded under Title VII case law. It's a narrow exception. Indeed, the primary case that Ms. Jarvis cites found there was no substantial identity in that case, but can it exist as an academic matter? Yes, it can, Your Honor.
THE COURT: Okay. Well, that -- that -- that -- it would seem to me, given what you've just said, I don't need to hear from you, Mr. -- Ms. Jarvis because obviously you agree with that?
MS. JARVIS: Agreed.
THE COURT: Right. Okay. So, again, concerning ourselves purely with the legal issues initially, can the complaint be brought against the individual defendants? In other words, is there individual liability under the VHRA?
MR. BERG: That's a straight issue of law, I agree, Your Honor, and the answer is no, there is no individual liability under the VHRA.
THE COURT: Let me hear from Ms. Jarvis. I'll let you know if I need to hear further.
MR. BERG: Thank you.
MS. JARVIS: Thank you, Your Honor.Excuse me. I need my glasses. I think this one is a long shot for my client, Your Honor, given what the Western District has said on this issue.
THE COURT: You mean in -- in Saville?
MS. JARVIS: Yes, sir. Right. That's -- that's exactly the case that I'm looking at.
THE COURT: Right. And that's the case I'm looking at.
MS. JARVIS: Well -- well, awesome. So what I really focused on in that case is -- and I -- I -- I took some notes here. I'm looking at the Westlaw version of it, Page 8, but it really goes to the issue of defining an employer. And Judge Urbanski has listed out the arguments, and what he said here, let -- lends me to think that there was some uncertainty in his position. Because he -- he cites the -- the definition of an employer and he -- they're teasing out this phrase, And any agent of such person, which would allow us to go after individual defendants. But he's going back and he's backing it up to the definition that's set forth in the VHRA, and he analyzes it a little bit, and then he goes on to say -- and right now, Mr. Berg, I'm quoting from Saville v. Northwestern. It's right where it has the asterisk 9 next to it
on Page 8, so it should be fairly easy to find. And I -- I thought Urbanski summarized this pretty well. He said that Saville argues that And any agents of such person language allows individual managers and supervisors to be held personally liable to the extent that they engage in discriminatory conduct. And I'm skipping over the citations to the particularities of his case. And then, the judge goes on to say that the interpretation -- this interpretation would dramatically expand the scope of the VHRA. Corbin and Benson, on the other hand, argue that the And any agent of such person language provides context for calculating how many persons are employed to determine if a person qualifies as an employer. And he goes on to say exactly what I think is the -- the cusp of the matter. He says, while the Court acknowledges some indeterminacy in this definition, the Court believes that Corbin and Benson have the cleaner reading of the statute; An employer is an entity with 15 or more employees or agents. And Your Honor, it's a textual analysis issue. When I proceeded and read through the definition section, I certainly understand what Urbanski's reasoning is, but I think that there is a reasonable argument for interpreting employee/employer and the context that it's often interpreted in other scenarios, and it -- it just simply is the -- an employer/employee agent type of analysis. So that's where I'm coming from. I
absolutely do acknowledge that the Western District has opined on the issue. The only thing that I saw here was the indeterminacy language that the judge used.
THE COURT: All right. Thank you.
MS. JARVIS: Thank you, Your Honor.
THE COURT: The Court finds that there is not individual liability under the VHRA. The case that the Court finds most helpful is Saville v. Northwestern Regional Jail Authority in the Western District of Virginia, January 8th, 2024. I -- I -- the language, Or agents of such person, I don't read that as providing of -- for individual liability. Given, as Judge Urbanski says, what a dramatic expansion it would be of the statute, if the VHRA had intended to provide for individual liability, it would -- I believe it would've said so explicitly. So the Court's ruling is that there is not individual liability under the VHRA.
MR. BERG: And Your Honor, just to clarify the scope of that ruling then, does that -- I -- I think it necessarily follows, but just to confirm my understanding, that means that all claims against Amber Kodish, Rose Sommovigo, Noah Howerton, Philip Scott Forbes, Carmen Campos, and Crystal Wheeler are dismissed?
THE COURT: Dismissed with prejudice -- the --
MR. BERG: Thank you.
THE COURT: -- on the VHRA. Right. All right. That brings us to -- can the -- can the complaint raise charges of discrimination that were not in the charge or the right to sue letter and -- all right. Go ahead.
MR. BERG: No. If Your Honor had other portions of the question, I'm happy to -- to --
THE COURT: No. I mean, the -- the -- Judge Tran, in Parikh Chopra v. Strategic
Management Services, LLC, essentially makes the point that that has to be raised in the charge --
MR. BERG: Yes.
THE COURT: -- and the right to sue letter. And so, the key issue here is whether or not the case can go forward on the national origin discrimination, right?
MR. BERG: Correct; and the answer is that, no, it cannot, Your Honor, for those reasons.
THE COURT: It can go forward on sexual orientation, but not national origin discrimination, because that was not raised in the charge or the right to sue letter; is that correct?
MR. BERG: I -- I -- I have more to say about the defendants against to whom a claim might proceed, but correct as far as the theories. That's -- I agree with Your Honor.
THE COURT: Okay. Let me hear from Ms. Jarvis.
MS. JARVIS: Thank you, Mr. Berg. Thank you, Your Honor. After reading the Defendant's reply brief, I agree that anything that was reported to the EEOC before, like, letters sent to the EEOC and the EEOC's investigative report or inquiry report that kind of takes the recorded conversations, that cannot be part of -- of our argument. But what can be part of the argument that we submit to the Court is what is in the charge letter and what could be reasonably inferred from it if someone conducted a reasonable investigation from what's presented in the charge. And so, that brings up some factual issues, and before I jump into those, I wanted to make sure --
THE COURT: Well, yeah, let's reserve -- let's reserve ourselves to the legal issues, right, the pure legal issue.
MS. JARVIS: Yes, sir.
THE COURT: Do you agree that -- well, let me ask you whether you agree that the complaint in this Court is limited to charges of discrimination that were in the charge and the right to sue letter?
MS. JARVIS: No, sir. I think that there is additional language in a lot of the decisions that says it -- that were limited to what's in the charge letter and what could be discovered from a reasonable investigation that is initiated by the details that are contained in the charge letter. For example -- and I'm not going to go too far into the facts, but, like, in this charge letter, you've got letters that are referenced in here. So those letters should be considered as part of the charge letter for the purposes of both the defendants and the national origin claim, because they're listed in the charge, and somebody who receives it would have reasonable notice of what matters are contained in those letters.
THE COURT: Do -- do you have a hard copy of that right to sue letter? Can I see --
MR. BERG: I do, Your Honor. Give me one moment. Is this part of your exhibit?
THE COURT: All right. Go ahead, Ms. Jarvis.
MS. JARVIS: Thank you, Your Honor. So please stop me if you think I'm getting too much into the -- into the weeds here. But, once again, what I'm really coming to is the case Evans v. Larchmont on Page 9 of that case, which talks about the charge and what would instigate a reasonable investigation of the items that are mentioned inthe complaint. And in the particulars section of the charge, there are several emails and letters and things that are referred to in -- in -- in the particulars. Like, just for example, on September 22nd, 2022, I was hired by the above named respondent in the position of Vice President of Data Sciences, and it cites his hire date and any -- so when this -- so when this charge from the EEOC is sent over to KG&P, the named defendant, they're going to have notice of who was hired by who. Like, for example, in Plaintiff's Exhibit 2 to the complaint, we -- we see an offer letter that's from evolve24 to the -- to -- to the Plaintiff. And if you don't mind proceeding down through the bill of particulars, it also refers to
a February 7th, 2023 incident where human resources informed him of a complaint against him. Again, any reasonable investigation of the complaint -- of
the -- of the charge would lead the legal department or the team to look up who -- who the human resources person was, and that is clearly someone from evolve24 that's --
THE COURT: Can -- can -- can I see -- all of our files are electronic now. Do you have a hard copy of the charge?
MR. BERG: Yes.
MS. JARVIS: Your Honor, I can stipulate -- nevermind.
THE COURT: You can stipulate to what?
MS. JARVIS: Nothing.
THE COURT: All right.
MR. BERG: And just so the record is clear, this is Exhibit A to R, demurrer and plea in bar.
MS. JARVIS: Yes, sir.
MR. BERG: And I believe Ms. Jarvis also attached a copy as Exhibit 2 to her opposition, but they're the same document.
MS. JARVIS: Thank you, Mr. Berg.
THE COURT: Just give me a moment. I've got the charge of discrimination letter. Do you have the attachments? Were there attachments to it?
MR. BERG: There -- there were not with the copy that my client received.
THE COURT: Okay. So when you refer to attachments, what are you referring to?
MS. JARVIS: I'm referring to in the particulars, which -- are you -- your Honor, are
you looking at the charge of discrimination itself?
THE COURT: Yeah, the three-page.
MS. JARVIS: Okay. So I'm looking at the particulars, and what I'm saying is references to dates and references to emails or complaints are enough to put the respondent or respondents on notice of who is being sued and what they are being sued for.
THE COURT: But -- but the -- Page 2 says, I believe I was discriminated against on the basis of my sexual orientation, gay, and retaliated against for complaining. It -- so it's very -- it's very clear what he is claiming, and there's no reference to national origin in -- in that.
MS. JARVIS: That's completely correct. There -- there is no -- in the charge of
discrimination, Your Honor, there is no direct reference to national origin. What I am arguing is that there are letters and emails referenced within the particulars that do speak to the issue of national origin, and a reasonable investigation of those under the Evans v. Larchmont test would be more than enough to put either KG&P or evolve24 on notice of not only who is being sued, but what they're being sued for --
THE COURT: Well --
MS. JARVIS: -- or complained about.
THE COURT: But that gets to the -- the Page 2, the -- if I understand, what you're saying is that a reasonable investigation of the documentation should have led to put them on notice and -- and understanding on, under the VHRA, that the -- your client was discriminated against on the bases of national origin. But the complaint
itself, the -- the charge itself tells the VHRA and tells the employer that this is what I was discriminated against. In other words, it -- it sounds like what you're saying is that a complaint can be filed on any basis of discrimination authorized by the statute if that might be inferred from the investigation without regard to whether or not it was claimed in -- on Page 2.
MS. JARVIS: I'm not going that far, Your Honor. What I'm trying to apply is the test that's laid out by the courts, which speaks to what's described in the charge of discrimination. And in a charge of discrimination, there's not a whole lot of space to put down all the different items. So if you put down, hey, look, I complained in this letter to you, and if you look up the letter, in that letter, there's a very clear complaint about national origin, for example, then that should be enough, again, Your Honor, to put the defendant on notice of what they're being sued for. That's the standard. And I understand and completely don't argue with what you're saying insofar as the word national origin is not clearly written on the
charge of discrimination, but, in my opinion, that's not the standard of review for the Court. It's what is in the charge of discrimination, including the bill of particulars, that would lead to a reasonable investigation of what the charge is. That's my position.
THE COURT: You know the -- the document itself doesn't limit the -- your client to this 2-inch box. It says if additional paper is needed, to attach it to extra sheets. So there's -- there's no page limitation that -- that -- I mean, it -- the client -- your client is not forced to put it in 8 point type so that it -- it can -- you can get everything in there; he can attach additional pages. So the -- the concern the Court has is the notice issue. The -- Mr. Osman is very explicit in saying what his claim was, that he was discriminated against on the base of sexual orientation. He does not make reference, as you agree, to national origin discrimination. And
under the framework of this, the statute isn't -- doesn't that tell the employer that this needs to be the focus of what we're looking at here?
MS. JARVIS: It comes down to whether or not what is in here would give them notice and the -- yeah.
THE COURT: I -- I understand. Let me hear from Mr. Berg on -- on what Ms. Jarvis has -- has -- has said.
MR. BERG: Thank you, Your Honor. I have -- I have two primary points in -- in
rebuttal. One is we cited a wealth of case law from the 4th Circuit, which is, you know, unchallenged in -- in Ms. Jarvis's opposition brief. I'm citing specifically to Chacko v. Patuxent Institute, 429 F.3d 505 at 512 4th Circuit 2005, Sloop v. Memorial Mission Hospital, Inc. 198 F.3d 147 at 149 from the 4th Circuit in 1999,
and then Bryant v. Bell Atlantic Maryland, Inc. 288, F.3d 124 at 132 and 133 from the 4th Circuit in 2002. Those stand for the proposition -- and this is a direct quote from Page 11 of our opening brief -- The plaintiff's claim generally will be
barred if his charge alleges discrimination on one basis, such as race, and he introduces another basis in formal litigation such as sex," and that's a quote from the Chacko Court. The Bryant Court also dismissed -- affirmed, I should say, the dismissal of color and sex discrimination claims where the charge itself only alleged race discrimination. Your -- Your Honor is focused appropriately on -- on the contents of the four corners of the charge and, to your point, which is well taken, any attachments that Mr. Osman did or did not attach, and according to what our clients received, he did not attach any such filing. And I think this language is -- is on all fours with the circumstances of this case, which, again, involves a statute that is largely modeled after Title VII. Mr. Oman's charge alleged discrimination on the basis of sex, and it alleged retaliation by KG&P Strategies. It did not allege national origin discrimination by KG&P Strategies. It did not allege national origin discrimination by any entity. There's nothing -- in addition to Page
2 of the charge, I would also just reference, on Page 1, right above the particulars that Ms. Jarvis brought to the Court's attention, there's a field that says, Discrimination based on, and it says, Retaliation, sex. That form, just for the Court's evocation, also allows a charging party and/or his counsel to complete -- you know, basically check boxes -- it's as simple as that -- and you can check -- you can check race, you can check sex, you can check national origin, you can check any other basis, and he did not do that here according to the charge that was filed, which he reviewed and digitally signed on July 24th, 2023.
THE COURT: Is that on -- in the -- are you talking about the right -- what -- what are you --
MR. BERG: I'm talking about the -- the --
THE COURT: Charge?
MR. BERG: -- charge one, yes. On Page 1, you -- we focused -- you -- Your Honor appropriately quoted from Page 2 of the charge. Page 1 of the charge, there's a -- basically a field. On the right-hand column, it says, Dates discrimination took place. On the left-hand of that, it says, Discrimination based on, and then it says, Retaliation, sex. Does Your Honor see that?
THE COURT: I see that.
MR. BERG: Yeah. So that further informs, you know --
THE COURT: I see.
MR. BERG: I think that the -- basically, the Court can look both to those fields, as the 4th Circuit has repeatedly for decades, and to the particulars and -- and conspicuously absent anywhere from that is the reference to national origin discrimination. And the only other point I wanted to make in rebuttal on this issue is that Ms. Jarvis has cited to, basically, the -- the leniency doctrine that because Mr. Oman is a lay person that, somehow, deference should be given to him.
THE COURT: I know what you're going to say. He was represented.
MR. BERG: Exactly. And he -- and so that, you know, should he have wished to have asserted a national origin discrimination claim, he could have done so through his counsel, and that was not what happened. Instead, it was a request not to investigate any such claims or to assert additional claims. It was a request for a right to sue notice they -- as counsel -- or to be sent to counsel for the respondent, singular, KG&P Strategies.
THE COURT: Okay. Thank you. Ms. Jarvis, is there anything else you want to say on this issue that you haven't had a chance to say?
MS. JARVIS: One quick thing about the box checking, which is correct, but I think it's important to understand how that process goes down -- or went down in this case. Like with many other EEOC complainants, my client was on the phone with
one of the EEOC folks, and she was the one that had the visual on the box checking, and that's one point. As far as the lay person versus the represented by counsel, Counsel was not involved in this case until October, well after this charge was initially filed. Now, ostensibly, Counsel could have made a motion --
THE COURT: Amended the --
MS. JARVIS: -- amended the charge, and that's --
THE COURT: And that's what I assume Mr. Berg is referring to. I don't think he's -- I mean, it's -- clearly, this is a pro se submission --
MS. JARVIS: Yes. Yes.
THE COURT: -- but he's referring to the fact that Counsel became involved at a time when the charge could have been amended.
MS. JARVIS: Yeah. I think that's a fair -- a fair point.
THE COURT: All right. Thank you. All right. Well, I -- I find that the complaint is
limited to the charge of discrimination and --which is sexual orientation. It's very explicitly stated in both Page 1, retaliation, sex, and on Page 2, sexual orientation, gay. And -- and so to the extent that the complaint raises a complaint of national origin discrimination, that portion of the complaint is struck, or cannot go forward.
MR. BERG: I believe just to clarify, that that would mean that Counts 2 and 4, the
national origin discrimination claims are -- are dismissed with prejudice?
THE COURT: They're dismissed with prejudice.
MR. BERG: Okay.
THE COURT: Well, let me just -- let me just stop you on the with prejudice point.
MR. BERG: Yes.
THE COURT: Is Mr. Osman precluded from filing a new charge based on national origin? Because I -- I -- I don't know why he would be, unless there's some statute of limitations that has expired.
MR. BERG: Well -- and -- and that's exactly it, Your Honor. I mean, the answer is, can he -- or the question -- if the question is can he file another charge, he can. Exactly as Your Honor has posited, that charge would be time-barred at this point. There's a 300 -- a, effectively, statute of limitations, and given that Mr. Osman's employment ended over a year ago -- or, excuse me -- in -- according to his charge he challenged, acts that last -- most recently occurred February 17th, 2023 we're well outside of 300 days of this.
THE COURT: Well, Ms. Jarvis, do you agree that -- that -- see, I -- I don't want to
make a ruling on a statute of limitations that is not before the Court. So if -- if you think there's some statute of limitations argument that would permit him to file a national origin claim at this time, I will dismiss those counts without prejudice and parties can litigate it. But if you -- if there is no basis for such a further charge,
then I would dismiss it with prejudice.
MS. JARVIS: I disagree that it's necessarily barred by the statute of limitations
due -- due to the relating back aspect of it.
THE COURT: Okay. Then -- then it's dismissed without prejudice.
MS. JARVIS: Thank you, Your Honor.
THE COURT: Okay. All right. So the -- so let's see where we are now. I -- I ruled on the exhausted administrative remedies, and he certainly exhausted his administrative remedies with respect to sexual orientation and -- and against KG&P and any other entity that would meet the substantial identity exception, which -- as the case law is under Title VII, but, as Mr. Berg acknowledges, the
Court can consider that in determining whether that would apply here as well. I -- Mr. Berg, let me hear from you on the factual issue. And I -- I can tell you at the outset that I think you have an uphill fight arguing that evolve24 and Sherpa, LLC would not be included in -- and -- and Ms. Jarvis, am I correct those would be the -- the -- would those be the entities that you would --
MS. JARVIS: Yes.
THE COURT: Evolve24 and Sherpa? Not -- there's some other entities, KACE, TPG, MVM.
MS. JARVIS: I think it would be fair to -- to go forward, assuming that evolve24 and Sherpa would be the other ones, yes.
THE COURT: All right. So those are the only ones you need to address. And --
MR. BERG: So just to clarify that point before I turn to that argument, are -- are -- are you saying -- I can ask the Court or I can ask Ms. Jarvis directly. Are -- are we saying that the -- the claims against -- allegations against case KACE, K-A-C-E, MVM, Inc., and the Providencia Group that those would all be dismissed?
THE COURT: Well, let -- let me see if I understand Ms. -- what Ms. Jarvis is saying is -- is -- I believe her position is that Sherpa and evolve24 would fit into that category, but the others would not, so those would be dismissed; is that correct?
MS. JARVIS: You know, there's -- there's a -- there's a little bit, actually, of --
there's something on, I guess it's, KACE and MVM. There were two entities that actually issued, like, a W-2 and a 1095 to my client. And I know that's an extremely factual issue, but I would -- I would agree with kicking out the Providencia Group, TPG, but MVM, KACE -- let me just make sure I've got the
right companies. Sorry, Your Honor. I've got notes all over my -- so KACE Company issued a Form 1095-C to my client, and so I would request that we
consider KACE Company, as well as Sherpa, LLC and evolve24.
THE COURT: But not MVM and TPG?
MS. JARVIS: Yes, sir. Yes, sir.
THE COURT: Okay. The MVM and TPG, Mr. Berg, are out.
MR. BERG: Thank you, Your Honor. Thank you, Ms. Jarvis. Okay.
THE COURT: So the -- the evolve and Sherpa are the ones I said I thought you had an uphill climb on. I -- I -- I knew -- I -- based on the material I have, I knew very little about KACE, which is why I did not include them.
MR. BERG: Right.
THE COURT: Ms. Jarvis is saying that they issued a 1095. I -- I don't know what a 1095 is. What --
MS. JARVIS: Health insurance. It's for health insurance, Your Honor.
THE COURT: Okay. The -- the -- so that -- that is some evidence of KACE having a connection to his employment. The -- the -- it's -- it's a much different case with respect to evolve and Sherpa where you've got employees, Howerton, Sommovigo, Campos, Kodish, and Wheeler, who worked at evolve24. I mean, -- I mean, this substantial identity, I mean, even though they can't be sued individually, given their employment, get -- it -- it's -- it -- it seems impossible to
me that evolve24 and Sherpa would not know that their conduct was at issue in this case, but --
MR. BERG: Well, respectfully, on that last point, I -- I think -- you know, and this is
right -- taken out of the Carter case that I think both parties have cited regarding the substantial identity piece. There's been absolutely no suggestion or evidence offered that evolve24 -- which I'll just use the shorthand. Sherpa, LLC does business as -- as each -- evolve24 is -- is the entity name, so evolve24. Did they receive notice of the administrative charge? They did not. Are they -- they alleged to have committed the discrimination? Yes. Is KG&P -- and turning to the complaint now, the facts, as Your Honor pointed out, is KG&P alleged to have committed the unlawful employment practices? No, it is not. Is KACE alleged to have committed any unlawful employment practices? No. These are entities that are -- I think Your -- Your Honor's point is fair in terms of the evolve24 being the identified employer. The problem is Mr. Osman has not exhausted his remedies
as to evolve24, if he -- which --
THE COURT: Well, but not -- but he has if I find substantial identity.
MR. BERG: If Your Honor finds substantial identity. What did -- what did the Carter case hold? This is Ms. -- Ms. Jarvis's best authority on the substantial identity piece. It rejected -- the Court's indulgence here; one moment. All right. So I -- I want to draw the Court's attention to Carter v. Dominion Energy, 529 F. Supp. 3d 525, and I'm focused on Page 546 of that Court's decision.
THE COURT: That's exactly what I've got.
MR. BERG: Yes.
THE COURT: I've got the -- the four factors.
MR. BERG: Right. And then, how does the Court resolve it, apply those four factors to the facts of the case involving Mr. Carter?
THE COURT: Well, may you help -- let -- let me hear from Ms. Jarvis on those four factors, and then I'll hear from you further.
MR. BERG: Okay.
THE COURT: Ms. Jarvis? I mean, I -- I -- I -- I agree that those four factors is what I should be looking at under Carter.
MS. JARVIS: Let's start with who had control to fire and hire. Is that where we're
going to start?
THE COURT: Go ahead.
MS. JARVIS: Amber Kodish is the CEO of evolve, and she's noted -- court's indulgence; I'm going to grab the charge of discrimination. Amber Kodish is noted in the charge of discrimination and the particulars, On February 17th, 2023, I was
terminated in a meeting with Amber Kodish and Crystal Wheeler, profiling to include Mr. Howerton, in a company-wide email after he was assigned to another supervisor. So that is the power to fire. The power to hire is discussed in the charge of discrimination: September 27th, 2022, I was hired by the above named respondent in the position of VP of Data Science. And that very much is a substantial identity because he is stating that he was hired by KG&P, who is the parent company in his -- in his mind, when he filed the lawsuit and washired by the company to work for them. So throughout all of this, it -- it's -- it's very interesting. In the termination email -- and that is mentioned -- in the termination email that my client received, the CEO of KG&P was copied in that, Mr. Marquez. So then, there's some other issues that the Court needs to consider as far as, like, who pays salary. Obviously on the W-2, Sherpa, LLC/evolve24 is listed on there. It's actually just Sherpa that's listed, but if you look at the Virginia State Corporation Commission, it -- it actually says on there -- identifies Sherpa, LLC, evolve24. They're listed together. The -- once again, the hiring control, the (indiscernible) letter is from evolve24. And in the charge of discrimination, I don't think it could be that much more clear, unless evolve24 was actually written in the box next to KP&G Strategies, that evolve24 is directly involved. There's six different employees or managers of evolve24 that are listed in the particulars. So I
think it's a fairly clear --
THE COURT: All right. Let -- let me hear -- I said, Mr. Berg, I'd hear from you again on this.
MR. BERG: Thank you, Your Honor. And I -- maybe I'm confused, but I thought that we were talking about the four factors here that are cited in Carter v. Dominion Energy, and those are whether --
THE COURT: Well, we -- we were, but I think Ms. Jarvis made a general argument.
MR. BERG: Okay. Fair enough. And I -- I don't mean to cast any aspersions on Ms. Jarvis personally. So just turning back to the point I was going to make before Your Honor heard from Ms. Jarvis, the four factors here, whether there are
similar interests between the named and unnamed parties; two, the ability of the plaintiff to ascertain the unnamed party at the time of the administrative charge; three, whether the unnamed party had notice of the administrative charge; and
four, prejudice to the unnamed party. And applying those factors here, the Carter Court said -- rejected the substantial identity theory. It said that -- and I'm quoting
here -- Plaintiffs have not alleged sufficient facts to draw reasonable inference that Frenzelit, the dismissed defendant, is substantially identical to Dominion. Plaintiffs knew the identity of Frenzelit prior to filing the charge. They even mentioned Frenzelit in their attachment to the charge, but did not name them as an employer in their filing. Further, Frenzelit is a distinct and separate entity from Dominion. The amended complaint does not allege that the two companies have similar interests, involve the same types of business, are the same size or are run by the same individuals, because they were not named in the complaint. The agency there, which was OFCCP, as opposed to the EEOC or the Virginia Office of Civil Rights, did not contact Frenzelit, and they were not involved in the administrative process. Thus, Plaintiffs have not alleged facts showing substantial identity between Dominion and Frenzelit. How does that apply here? The same
general outcome, I think, is dictated by the facts that we have in this case, and that is, clearly, as Ms. Jarvis just explained, Mr. Osman knew evolve24 prior to filing the charge. He just -- as you just heard, he cited, apparently, several employees of evolve24. He received an offer letter, which is integral to the complaint, which says that, On behalf of evolve24, I'm pleased to extend our offer
of employment to you. He alleges as much in the complaint. Paragraph 17 of the complaint, Osman, hired as the vice president at evolve24, began working for Defendant, evolve24, citing to the offer letter. He knew all of this prior to his filing his charge. And, to Ms. Jarvis's point, he could have named them, evolve24, in the charge, same as he could have added attachments to the charge, same as his counsel could have amended the charge. Did any of that happen? It did not.
Were there factual allegations here that show that the companies are the same or
substantially similar? Not enough to -- to counterbalance the other factors. And I base that on, again, we have a conclusory allegation in Paragraph 3 of the complaint. We have filings from the Virginia State Corporation Commission, and I'm referring here to Exhibits E -- excuse me -- B through E of our reply that show that there -- these are, in fact, different entities. And -- and the fact that Corporate
Defendant, Sherpa, LLC, d/b/a, evolve24, is listed in its own paragraph with located in Missouri, in contrast to KG&P, which is in Virginia and which did not receive notice from -- was not involved in the administrative process -- just like Frenzelit, right? It was not because, as we've seen -- not to belabor the point -- we -- Your Honor took a look at the right to sue notice. That right to sue notice was sent to KG&P Strategies. So the fact that evolve24 is now named in the complaint is fine and well, but his -- it glosses over his shortcomings prior to following the administrative exhaustion requirements of the VHRA before proceeding -- trying to proceed now against evolve24. I -- I don't think there's been a showing of substantial identity on the facts of this case. Ms. -- excuse me, Ms. Jarvis has not cited any case law that has found substantial identity in circumstances similar to these. And so, we would ask that evolve24 be dismissed and that this case be dismissed.
THE COURT: I just stayed there. I disagree with you. I think there's sufficient
substantial identity with evolve and Sherpa. I -- I don't think there's substantial identity established with respect to the other entities, including KACE. I mean, I understand what Ms. Jarvis has said about the 1095, but evolve and Sherpa, I think, are in a different category. So that's the Court's ruling. So that -- that leaves
just one issue, which is the demurrer and whether or not there is sufficient facts to support a claim of discrimination based on sexual orientation. Do you want to be heard on that?
MR. BERG: I do. And -- and I -- I understand Your Honor's ruling on the parties. My argument here, primarily, is that the claim should -- against KG&P, setting aside evolve24, based on Your Honor's ruling, KG&P should be dismissed because there is no allegation that anybody at KG&P actually engaged in any unlawful employment practice. These allegations, according to, you know -- Section 2.2-3908 of the Virginia Human Rights Act, says that an individual may sue an employer for unlawful employment practice as well. Mr. Osman's employer, singular, as alleged on the facts of his pleading, is that evolve24, and not any other entity, was his employer. He was hired, again, as I said, at evolve24. His offer letter says as much, the other exhibits to his complaint say as much, and there's been no showing -- I -- we can just walk through the --
THE COURT: So let me see if I understand your position. Are you saying that you
are not challenging -- well, I'm -- I'm -- I'm going to put words in your mouth just for you to tell me whether or not this is in fact --
MR. BERG: Sure.
THE COURT: -- your position. With respect to -- given the Court's ruling with respect to evolve and Sherpa, you are not challenging the sufficiency of the claim of sexual orientation discrimination, but you are challenging that with respect to KP&G; is that correct?
MR. BERG: Yeah. That -- that -- that's correct, Your Honor. Right. Our position, based on Your Honor's ruling, is that all claims other than Mr. Osman's sexual orientation discrimination against evolve -- excuse me -- Sherpa, LLC, d/b/a,
evolve24, should be dismissed and, as relevant here, that all claims against KG&P should be dismissed.
THE COURT: All right. Let me hear from Ms. Jarvis on -- so I don't need to hear from you as to whether it's sufficient against evolve and Sherpa, because I've made that ruling. So the only issue that you need to address, Ms. Jarvis, is whether KP&G should stay in the case.
MS. JARVIS: I think that KP&G stays in the case because there are allegations that they are an employer with substantial identity, as we've just gone over with evolve24 and Sherpa.
THE COURT: That's all I need to hear. I mean, I -- I -- I -- I agree with you. And --
and so, they're staying in the case. So I made a lot of rulings, and I think the best way to proceed is rather than you doing a sketch order here in Court, if you could file, a week -- within a week from today, an order from today's hearing that both of you have signed and noted all your -- whatever objections you have, I think that would be the best way to proceed. And just submit it to the Court. You don't need to appear again; just submit it to the Court, okay, a week from now. Thank you.
MR. BERG: Thank you, Your Honor.
MS. JARVIS: Thank you.
THE COURT: All right. That completes our 10:00 a.m. docket. We'll be back in 15 minutes.
(Off the record at 11:24 a.m.)

CERTIFICATE OF COURT REPORTER - NOTARY PUBLIC
I, Lee Utterback-Pair, the officer before whom the foregoing proceedings were taken, do hereby certify that any witness(es) in the foregoing proceedings were fully sworn; that the proceedings were recorded by me and thereafter reduced to
typewriting by a qualified transcriptionist; that said digital audio recording of said proceedings are a true and accurate record to the best of my knowledge, skills, and ability; and that I am neither counsel for, related to, nor employed by any of the parties to this case and have no interest, financial or otherwise, in its outcome.
Notary Registration No.: 7796769
My Commission Expires: 8/31/2026
_________________________________
LEE UTTERBACK-PAIR, NOTARY PUBLIC
FOR THE STATE OF COMMONWEALTH OF VIRGINIA
May 22, 2024

CERTIFICATE OF TRANSCRIBER
I, Karen M. Galvez, do hereby certify that this transcript was prepared from the digital audio recording of the foregoing proceeding; that said proceedings were reduced to typewriting under my supervision; that said transcript is a true and
accurate record of the proceedings to the best of my knowledge, skills, and ability; and that I am neither counsel for, related to, nor employed by any of the parties to the case and have no interest, financial or otherwise, in its outcome.
_____________________________
KAREN M. GALVEZ
PLANET DEPOS, LLC
May 22, 2024